Washington Lawyer - July/August 2020 - 33

FEATURE

I

n 1788, while advocating for the adoption of the
Constitution, Alexander Hamilton famously wrote
in The Federalist Papers, No. 70 that the structure
of government should enable the office of the
president to have sufficient "energy" to meet
the great challenges of the day. "[W]hat are the
ingredients which constitute this energy?" Hamilton
asks rhetorically, and he goes on to name four
elements: "unity; duration; an adequate provision
for its support; and competent powers." As if sensing
anxiety incurred by the vision of an energetic head
of state, Hamilton reassuringly adds: "The ingredients
which constitute safety in the republican sense are
[first] a due dependence on the people, and [second,]
a due responsibility."

Hamilton's instilling the executive with energy alongside a heightened
responsibility to the people also characterizes his vision for the legislature and judiciary, a twofold governing principle that holds sway today.
Recent scholarship argues that in addition to his broad stroke writing,
Hamilton's detailed legal thinking and strategizing were centrally consequential for law and public administration taking hold in the new
republic.
These were hard-won successes for Hamilton, and his legal actions and
prolific theorizing combined also transformed the working arrangement
of U.S. governance. Scholars hold that the impact of Hamilton's work is
vitally relevant today as the country navigates some unprecedented
challenges, including a pandemic that's crippling economies and battering health systems worldwide.

JUDICIAL REVIEW VISIONARY
Western Kentucky University historian Kate Brown, who has written on
the practicing lawyer side of Hamilton in her recent book Alexander
Hamilton and the Development of American Law, says Hamilton never shed
his lawyer identity, and as a government official and private counselor he
went to court energized to resolve demarcations he deemed necessary
for the country to become solvent, functional, and commercially robust.
Brown depicts Hamilton's use of common law and equity court matters
in his court claims as illustrative of the broad import of Hamilton in
action as a lawyer. "When Hamilton thought about law in the broad
sense, he was thinking of common law as all of the law coming out of
England, and that means he had access to concepts that came from
equity, that came from ecclesiastical courts and baronial courts and from
admiralty, and also from the courts of common law," Brown explains. "He
got all sorts of substance but also time-tested ways of dealing with
problems. And it was this grab bag of law that he and his generation
used to inform how they thought about constitutional law in the United
States."
Georgetown University Law Center Dean William Treanor, whose
Hamilton writings include "The Genius of Hamilton and the Birth of the
Modern Theory of the Judiciary," a chapter contribution to the Cambridge
Companion to the Federalist, agrees with Brown that Hamilton's actions in
courts exemplify both his brilliant legal mind and his strategic sense of
how to get law to take hold in America. He similarly points to Hamilton's
prodigious abilities in Rutgers v. Waddington, which Hamilton litigated in
New York state court in 1784, not long after his accelerated legal training.
Rutgers was a trespass case of a British loyalist using a fleeing patriot's
brewery during the British occupation. Hamilton argued that a New York
state statute that allowed returning landowners to sue occupiers of their
land was unconstitutional (this, before there was a Constitution), as it
contravened the treaty with Great Britain ending the war, as well as the
spirit of national unity represented in the Declaration of Independence.

John Trumbull/Wikimedia Commons

JULY/AUGUST 2020

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